On March 3, 2012, the federal district court in the District of Columbia ruled that the National Labor Relations Board (NLRB) has sufficient rulemaking authority under the National Labor Relations Act (NLRA) to require most private sector employers (whether or not they have union workers) to post workplace notices that inform employees of their rights under the NLRA. (Docket No. 11-1629). The effective date for compliance with the NLRB rule, originally November 14, 2011, had been postponed to April 30, 2012 pending court review. Several business organizations, including the Coalition for a Democratic Workplace (CDW—which NAW helps manage), challenged the rule and its enforcement provisions in court on various grounds.

In ruling on cross-motions for summary judgment, Judge Amy Berman Jackson found that Congress, in enacting the NLRA, did not “unambiguously” preclude the NLRB from issuing a rule that requires employers to post a notice in the workplace, informing employees of their labor law rights. Nor does this mandate violate an employer’s First Amendment rights as compelled speech. Therefore, according to the court, the NLRB has sufficient authority under the NLRA to issue the notice posting rule.

However, the court did invalidate several enforcement sanctions in the NLRB rule. First, the NLRB does not have any authority to “make a blanket advance determination that an employer’s failure to post [the notice] will always constitute an unfair labor practice.” Instead, the NLRB must make a specific finding, based on the evidence and circumstances in an individual case, that the failure to post actually interfered with or restrained employees from exercising their rights under the NLRA. The opinion goes on to note that “nothing in this decision prevents the [NLRB] from finding that a failure to post constitutes an unfair labor practice in any individual case brought before it.” Second, the NLRB has no authority to extend the time period (generally six months) set by Congress for an employee to file an unfair labor practice charge against an employer, simply because the employer has not posted the notice at the jobsite. The court declared each provision void and unenforceable.

Further, the court declared valid a part of the rule that allows the NLRB to consider an employer’s knowing and willful refusal to comply with posting requirements as evidence of the employer’s unlawful motive in a particular case. In the court’s opinion, the plaintiffs’ complaint did not specifically challenge this provision.

Finally, the court rejected the plaintiffs’ challenge that the President’s appointment of three new NLRB members on January 4, 2012, without the advice and consent of the Senate required by the U.S. Constitution, was unconstitutional, null and void. Plaintiffs had asserted that with only two validly-appointed members, the NLRB has no authority to implement and enforce the notice posting rule. The court considered this claim “futile”.

Appeal Filed

On March 5, 2012, CDW and other organizations appealed the district court’s ruling to the U.S. Court of Appeals for the District of Columbia. Since the lower court’s ruling was divided, the NLRB may also elect to file an appeal. Unless the appeals court stays the effective date, the rule will go into effect on April 30, 2012.

Conclusion

Although as discussed above several enforcement provisions in the NLRB rule were invalidated, an employer should not consider compliance with the notice posting rule “optional”. The failure to post the notice can result in an employee filing an unfair labor practice charge with the NLRB, which sets in motion an investigation and possible issuance of a formal complaint by the NLRB against the employer.